Monday, August 01, 2005

It has been suggested that legal scholars imprudently fetishize the United States Supreme Court, when the real action takes place in lower federal courts, state courts, and court-like alternative dispute fora.

I would go a step further and suggest that legal scholars, except for certain specialists, imprudently fetishize courts at the expense of the rest of the legal and political system. As I have said over and over again, although it is a useful and necessary exercise to scrutinize each important judicial opinion, we often do so myopically, failing to fully appreciate that courts are but one planet in the larger universe.

The reasons for this tendency are, I think, evident. First, we went to law school, and in law school we are trained to (a) read, interpret, apply, and critique judicial opinions, and to a lesser extent statutes and regulations, and (b) argue before judges. We are not trained in legislative sausage-making, grass-roots organizing, lobbying, golfing, or any of the other crucial elements in the system.

Second, many of us grew up in a period in which the Court has been immensely powerful, both in establishing the law of the land and in framing the larger political and legal debates.

But it is a mistake, at least insofar as we consider ourselves legal scholars and legal commentators, rather than court scholars and court commentators, to fail to put the judicial branch in perspective. [Emphasis in original.]

I use the terms "planet" and "universe" for a reason. Just as it is impossible to understand the universe by simply looking at the earth, it is impossible to understand the legal and political system by simply looking at the courts. More importantly, just as it is impossible to truly understand the earth itself without analyzing the moon, the sun, and the other planets and the ways in which they interact, it is impossible to truly understand the judicial system alone without analyzing all of other forces in the legal universe and how they interact with the courts. Too frequently we try to understand law and politics by looking only at courts; and to understand courts without looking beyond them.

Levin is not the first to note this as a problem with American legal education. The source of this bias goes back at least to Langdell, and is probably his greatest (and most pernicious) legacy. I would simply add that law librarians have to accept some of the blame. Legal research instruction at most law schools is focused heavily on case law research, despite the fact that since at least the 1930's much, if not most, of American law has been regulatory in nature. And probably most 1L legal research classes barely touch on administrative law sources. Certainly we follow the lead of the first year curriculum at our schools, but even so we seem to focus on case law research as if that's the way it really is, not simply a constraint of the traditions of legal education.